In Re De Neef

California Court of Appeal Jan 30, 1941 No. Crim. 2173Published

Before: Nourse

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Holding. The court held that a surviving spouse cannot be compelled to testify regarding confidential communications made during marriage, as the statutory privilege remains in effect and was not waived by the deceased spouse. Consequently, the order committing the petitioner for contempt for refusing to answer such questions was void.

Issues

Whether a surviving spouse may be compelled to testify regarding communications made by the deceased spouse during marriage under Section 1881 of the Code of Civil Procedure.
Whether a contractual waiver of the physician-patient privilege in an insurance application constitutes a waiver of the marital communications privilege.

Disposition. Petitioner discharged and bail exonerated.

Quotations verified verbatim against the opinion

“The legislature has declared that neither husband nor wife can be “examined as to any communication made by one to the other during the marriage” without the consent of the other.”

“Since the statute expressly declares that one spouse may not be examined under these circumstances the order of commitment was void.”

NOURSE, P. J.

The petitioner seeks her release on habeas

corpus

from a commitment for contempt based upon her refusal to answer certain interrogatories. Petitioner’s hus

[693]

band took out a policy of life insurance on December 16, 1939, with the California Western States Life Insurance Company. He died on February 15, 1940, and petitioner sued the company as beneficiary of the policy. The company answered setting up the defense that the policy had been secured by fraudulent representations as to the physical condition of the insured. In taking the deposition of the petitioner, questions were asked regarding communications made by deceased to the petitioner regarding the physical condition of the insured. Her refusal to answer the questions was based upon the provisions of subdivision one of section 1881 of the Code of Civil Procedure. Other objections to the questions—that they called for hearsay, and were incompetent, irrelevant, and immaterial—need not be discussed as the ease is closed by the code section.

The first subdivision of this section reads:

“A

husband can not be examined for or against his wife without her consent ; nor a wife for or against her husband, without his consent; nor can either, during the marriage or afterward, be, without the consent of the other, examined as to any communication made by one to the other during the marriage; but this exception does not apply to a civil action or proceeding by one against the other, nor to a criminal action or proceeding for a crime committed by one against the other, or for a crime committed against another person by a husband or wife while engaged in committing and connected with the commission of a crime by one against the other; or in an action for damages against another person for adultery committed by either husband or wife.” The petitioner correctly directs attention to the fact that two distinct privileges are granted by the section—(a) the privilege making husband or wife incompetent as a witness in an action for or against the other; (b) the privilege against testifying to communications between husband and wife. The distinction is an important one. We are here concerned with the second privilege only. For that reason we will not discuss the many decisions or the observations of text writers which relate to the first privilege mentioned.

In Re De Neef

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NOURSE, P. J.

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